COURT: VA CAN’T DENY BENEFITS TO SAME-SEX VETERAN, SPOUSE

Former Army sergeant’s disability payments calculated at single rate

WASHINGTON 
An Operation Iraqi Freedom veteran and her female spouse will be eligible for spousal benefits after a California federal judge ruled that the Department of Veterans Affairs could not bar same-sex couples from receiving them.

The decision allows Tracey Cooper-Harris, a former Army sergeant, to apply to receive the same benefits as a heterosexual married soldier. Tracey and Maggie Cooper-Harris were legally married in California in 2008, during the brief period when same-sex unions were legal in the state. That was two years before Tracey was diagnosed with multiple sclerosis, later determined to be related to her military service.

However, because the Department of Veterans Affairs treated her as a single veteran, she received $124 less in disability benefits per month than she would if her marriage was recognized. Without recognition of their marriage, Maggie Cooper-Harris would not receive any survivor’s benefits if her spouse died.

The couple’s previous application to have their marriage recognized by the VA was denied in 2011 because Tracey Cooper-Harris was not married to a man.

“The court finds that the exclusion of spouses in same-sex marriages from veterans’ benefits is not rationally related to the goal of gender equality,” U.S. District Judge Consuelo B. Marshall wrote in the opinion. Marshall added that denying benefits to same-sex couples was not related to any “military purposes” or “the military’s commitment to caring for and providing for veteran families.”

After the U.S. Supreme Court’s July ruling striking down the Defense of Marriage Act’s federal definition of marriage as between a man and a woman, many federal agencies declared that same-sex spouses would receive the same benefits as heterosexual couples.

The VA remained mum on the issue.

Title 38, the statute that governs the VA, still defined a spouse as “a person of the opposite sex who is a wife or husband,” so the agency was unaffected by the ruling until this week’s decision.

“It’s definitely a move in the right direction for our veterans because Title 38 was basically like a mini-DOMA and prevented the VA from recognizing same-sex spouses,” said Stephen Peters, the president of the American Military Partner Association, a group that supports lesbian, gay, bisexual and transgender service members.

However, while the couple will be able to apply for benefits, the VA has not explained how the decision fits into its national policy on benefits for same-sex couples. Peters said that he believed the decision would mean that legally married veterans under the court’s jurisdiction should be eligible for benefits, but he admitted that the lack of clarity was “frustrating.”

“I really just don’t know how this is going to play out and I think we are really going to have to wait to see how the Department of Justice and the VA interprets the decision,” he said.

VA spokesman Randy Noller declined to specifically comment on the case, only reaffirming in an email the VA’s commitment to “providing veterans and their families the care and benefits they have earned and deserve.” The Department of Justice did not return a request for comment as to how it views the ruling.

The Defense Department has said that same-sex spouses of military members will be eligible for the same health care, housing and other benefits enjoyed by opposite-sex spouses starting Sept. 3.